What damage is a "direct" consequence of war: the practice of the UN Compensation Commission

Abstract

The article is devoted to the analysis of the practice of the UN Compensation Commission from the point of view of the problem of establishing a causal link between a military invasion and the damage, for which the victims claim compensation. From the point of view of methodology, the article is based on the tradition of legal realism: the empirical material of the study is the Commissionʼs findings based on the results of the review of claims and the Commissionʼs general recommendations. The first part outlines the main provisions on establishing causation. The author distinguishes between two studies required to establish a legally relevant causal link, namely, the "if not" test and research on the remoteness/proximity of the causal link. It is sub­stantiated that the delictual risk should serve as the criterion of remoteness/proximity of causation: the act should be considered a sufficiently proximate (i.e., legally relevant) cause of harm, if such a harm falls within the range of foreseeable risks created by the act at the time of its commission and due to which (risk) this act is recognized as delictual. The second part of the article analyses the practice of the UN Compen­sation Commission regarding consideration of claims for compensation for damage caused by Iraqʼs illegal invasion of Kuwait and the subsequent occupation of Kuwait in 1990-1991. The hypothesis is put forward that although the Commission declared the principle of "direct" causation as the criterion of the remo­teness of damage, the Commissionʼs findings are better explained through the criterion of delictual risk and legal policy considerations. Regarding the justification of this hypothesis, a number of the Commissionʼs decisions are provided. The decisions on compensation for injury inflicted to life and health, and separately – decisions on compensation for damage caused to property and property interests, were investigated separately. It has been established that since an aggressive war is the most serious crime against humanity (an internationally wrongful act erga omnes), the limits of responsibility for such acts must be appropriate and proportionate to the scale of the atrocity. In particular, they must cover all those multiple and diverse risks that can be reasonably foreseen as a likely consequence of a military invasion, even if the causal link between the war and the damage is indirect and involves additional links or interventions of third parties.